Property of my grandfather who died before 1956
Thangaraja
(Querist) 13 July 2012
This query is : Resolved
Hi
I have a doubt. My grand father died at 1947 who has 1 son(My father) and 1 daughter. My father died 1 year back. My Aunt (Father's sister) is living in a property which was bought by my grandfather for past 30 years but all the property and land tax is paid by my father in his name. My aunt also died 5 years back.
Is there a possibility where my aunt's son can claim a share in the property because she is living there for 30 years. Is there any law for that?
Nadeem Qureshi
(Expert) 14 July 2012
Dear Querist
absolutely, he has a right in this property.
feel free to call
prabhakar singh
(Expert) 14 July 2012
Prior to enforcement of Hindu succession Act 1956 old Hindu law of succession was in force and it was divided in two schools Mitakshra and Dayabhag.Barring Bengal and Assam in other parts of India including South, Law laid by Mitakshra school was followed, although there were sub schools too.
As your grand father died in 1947,his succession took place according to old law of Mitakshra(presuming you to be of south and not in Bengal or Assam) as any succession can not be kept in abeyance.It takes place forthwith.
If it was self acquired property of your grand father then according to OLD HINDU MITAKSHRA LAW where under three classes of heirs were recognized,viz.,(a)Gotraj Sapindas,(b)samanodakas,and (c) Bandhus and where (a) to takefirst in preference of (b)and (b)in preference of (c).
The Gotraj Sapinda of a person according to Mitakshra were his six male decendants in male line,that is to say,his son,sons'son, and so on.
Hence in my opinion when your grand father died in 1947 ,his self acquired properties devolved upon his Gotraj Sapindas ,who at then was your father,and not his daughter.
Of course, if your grand mother was alive, she inherited a life interest in the property due to another enactment which would become her absolute if she died after enforcement of Hindu succession act 1956,through whom only her daughter or children of daughters'can claim.
Otherwise on plain facts Daughter of your grand father did not inherit any of her fathers'property on his death in 1947.So her children can also not claim any share is my view.
ashutosh mishra
(Expert) 14 July 2012
Welcome sir!
Have come back with a great appearance.
Thangaraja
(Querist) 14 July 2012
Thanks Prabhakar Singh Sir. Since my aunt and his sons were living there for past 30 years, can they claim a share on that basis?
Rasik Dagli
(Expert) 14 July 2012
If your grand father has not made any will, your father and aunt will have equal shares and her son can claim his share from her mother's share.
Hindu Succession Act 1956 only recognised rights of a daughter(equal to son). If grand father would have made will in favour of your father she would have lost her right.
RASIK DAGLI
Advocate.
ashutosh mishra
(Expert) 14 July 2012
I am Sorry For your case I do not agree with view expressed by MR.RASIK DAGLI
Advocate.
Rasik Dagli
(Expert) 14 July 2012
Every body has right to agree or disagree . But I hope that one should give reasons for his opinion. Without reason such reply can not have any value.
RASIK DAGLI
Advocate.
prabhakar singh
(Expert) 15 July 2012
In reply to this part of your question"Since my aunt and his sons were living there for past 30 years, can they claim a share on that basis?"
My answer would be:
(a) that they can not claim any share on this basis if their entry is proved permissive from your side.
(b)But if they prove their entry hostile and adverse to you with in your knowledge ,they can claim whole.
prabhakar singh
(Expert) 15 July 2012
Dear RASIK DAGLI Advocate.!
You may please take care of the facts stated at first instance in the QUERRY.
"My grand father died at 1947 "
Which law in 1947 shall be applicable?
One that was passed in 1956 keeping the inheritance in abeyance???????????????
or
Inheritance shall take place forthwith in accordance with law applicable in 1947.
You have not stated which law you have applied and what the law was in 1947.
To repeat your sentence"I hope that one should give reasons for his opinion. Without reason such reply can not have any value."
ashutosh mishra
(Expert) 15 July 2012
Dear Mr.RASIK DAGLI Advocate.!
Your original answer reads :
"If your grand father has not made any will, your father and aunt will have equal shares and her son can claim his share from her mother's share.
Hindu Succession Act 1956 only recognised rights of a daughter(equal to son). If grand father would have made will in favour of your father she would have lost her right.
RASIK DAGLI
Advocate."
On the very face of this answer it is clear that you have applied a law passed in 1956 to a case where a intestate died in 1947.
THIS IS NOT CORRECT WAY TO DEAL THE QUERY IN HAND.
THE SUCCESSION SHALL BE GOVERNED BY LAW IN FORCE IN 1947.
THAT IS WHY I DISAGREED WITH YOUR OPINION.
Anirudh
(Expert) 15 July 2012
I am highly happy with the very correct views expressed by Mr. Prabhakar Singh.
While I do not the basis for Mr.Nadheem Quereshi's answer - which is clearly wrong, the legal reasoning by Mr. Dalvi is not at all sound and therefore his answer is also wrong.
I repeat, any query must be answered after first understanding the query and the answer must be sound with legal reasoning, as has been done in this case by Mr. Prabhakar Singh.
It is always better to keep quiet if one does not know the answer, rather than to dish out something which is clearly wrong.
Anirudh
(Expert) 15 July 2012
In my above reply, the name may be read as 'Dagli" instead of "Dalvi".
Rasik Dagli
(Expert) 15 July 2012
Please first try to understand my reply and than comment.
ashutosh mishra
(Expert) 15 July 2012
Better you go to hell with your understanding.
You do not seem to be a learner.Learning is a process
that goes life long.
Rasik Dagli
(Expert) 16 July 2012
Mr. It seems that you are sending massages from hell. I am not a learner or junior like you. I am an expert very well acknowledge by people.
Anirudh
(Expert) 16 July 2012
Dear Mr. Dagli,
I take it very seriously your two comments:
1. "Please first try to understand my reply and than comment."
2. "I am an expert very well acknowledge by people."
While I am nobody to doubt or contest point 2, I would very much like to understand your reply.
Can you please explain on what legal basis you gave the following answer:
"If your grand father has not made any will, your father and aunt will have equal shares and her son can claim his share from her mother's share.
Hindu Succession Act 1956 only recognised rights of a daughter(equal to son). If grand father would have made will in favour of your father she would have lost her right."
Specifically when you say that your father and aunt will have equal share (assuming that there was no WILL) - what is the legal basis for saying so?
Anirudh
(Expert) 17 July 2012
Dear Mr. Dagli,
Can you please respond?
H.M.Patnaik
(Expert) 18 July 2012
Mr. Anirudh since your is very well resolved by Mr. Prabhakar Singh, what is the point of carrying on the query furthur?
Anirudh
(Expert) 18 July 2012
Dear Mr. Patnaik,
It is not the question whether the point is resolved or not.
It is equally important that some other Expert has differing view and claims that his view is correct. One should try to know from the said expert the legal basis for his reply. If need be others should stand corrected. Otherwise, the Expert needs to get himself corrected.
We should not simply get satisfied with whatever that is being dished out here as an expert answer!
We should not allow this LCI site to be a ground for hit and run - without any responsibility for the answer an expert provides.
Anirudh
(Expert) 19 July 2012
Mr. Dagli, though visited my profile, has not responded so far.
Thangaraja
(Querist) 20 July 2012
Hi All,
Thanks for the answers provided. My lawyer is saying that my father and her sister also have the rights in the property because of a amendment passed on 2005 over the Hindu succession act 1956. Please clarify. Thanks.
Anirudh
(Expert) 20 July 2012
YOUR LAWYER IS NOT CORRECT. EVEN IF THE COURT TAKES SUCH A VIEW, IT HAS TO BE BROUGHT TO THE NOTICE OF THE COURT AS TO WHERE IT IS ERRING. IT CAN BE DONE ONLY IF THE LAWYER HIMSELF IS QUITE SURE OF THE CORRECT LEGAL PROVISIONS. NATURALLY YOU HAVE TO ENGAGE COMPETENT LAWYERS.
THE CASE IS PENDING BEFORE WHICH COURT?
Thangaraja
(Querist) 20 July 2012
I went on to meet 4/5 lawyers and some is saying like my aunt is not having the right even after the 2005 hindu succession act amendment but 2 lawyers are saying like my father and his sister also have the rights in the property because of a amendment passed on 2005 over the Hindu succession act 1956. Please clarify.
